[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Rules and Regulations]
[Pages 9658-9665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3858]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2010-0932; FRL-9268-7]


Approval and Promulgation of Implementation Plans; Kansas: 
Prevention of Significant Deterioration; Greenhouse Gas (GHG) 
Permitting Authority and Tailoring Rule Revision; Withdrawal of Federal 
GHG Implementation Plan for Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the State 
Implementation Plan (SIP) for Kansas, submitted by the Kansas 
Department of Health and Environment (KDHE) to EPA on October 4, 2010, 
for parallel processing. KDHE submitted the final version of this SIP 
revision on December 23, 2010. The SIP revision, which incorporates 
updates to KDHE's air quality regulations, includes two significant 
changes impacting the regulation of greenhouse gas (GHG) under Kansas's 
New Source Review (NSR) Prevention of Significant Deterioration (PSD) 
program. First, the SIP revision provides the State of Kansas with 
authority to issue PSD permits governing GHGs. Second, the SIP revision 
establishes emission thresholds for determining which new stationary 
sources and modification projects become subject to Kansas's PSD 
permitting requirements for their GHG emissions. The first provision is 
required under the GHG PSD SIP call, which EPA published on December 
13, 2010, and which required the state of Kansas to apply its PSD 
program to GHG-emitting sources. The second provision is consistent 
with the thresholds EPA established in the Tailoring Rule, published on 
June 3, 2010. EPA is approving this SIP revision because this SIP 
revision meets the requirements of the GHG PSD SIP Call. In addition, 
as a result of this approval, EPA is rescinding the Federal 
implementation plan (FIP)--as it relates to Kansas only--that had 
previously been imposed on December 30, 2010.

DATES: Effective Date: This rule will be effective February 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R07-OAR-2010-0932. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the Air Planning and Development Branch, Air and Waste 
Management Division, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, KS 66101. EPA requests that if at 
all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section for further information. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kansas 
SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch, 
Air and Waste Management Division, U.S. Environmental Protection 
Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr. 
Gonzalez's telephone number is (913) 551-7041; e-mail address: 
[email protected].

[[Page 9659]]


SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. Analysis of Kansas's SIP Revision
III. What is EPA's response to comments received on the proposed 
action?
IV. What is the effect of this final action?
V. When is this action effective?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What is the background for this final action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action for 
the Kansas SIP. The first four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together, these actions established 
regulatory requirements for GHGs emitted from new motor vehicles and 
new motor vehicle engines; determined that such regulations, when they 
took effect on January 2, 2011, subject GHGs emitted from stationary 
sources to PSD requirements; and limited the applicability of PSD 
requirements to GHG sources on a phased-in basis.
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    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Reconsideration of Interpretation of Regulations that 
Determine Pollutants Covered by Clean Air Act Permitting Programs.'' 
75 FR 17004 (April 2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    In a separate action, the ``GHG PSD SIP Call,'' \5\ EPA called on 
the State of Kansas and 12 other states with SIPs that do not provide 
authority to issue PSD permits governing GHGs to revise their SIPs to 
provide such authority. In that action--along with the ``Finding of 
Failure to Submit SIP Revisions Required for Greenhouse Gases'' and GHG 
PSD FIP,\6\ which EPA finalized for some states, including Kansas, on 
December 23, 2010--EPA took steps to ensure that in the 13 states that 
do not have authority to issue PSD permits to GHG-emitting sources at 
present, either the state or EPA would have the authority to issue such 
permits by January 2, 2011, or soon thereafter. EPA explained that 
although for most states, either the state or EPA is already authorized 
to issue PSD permits for GHG-emitting sources as of that date, Kansas 
and the other 12 states have EPA-approved PSD programs that do not 
include GHG-emitting sources and therefore do not authorize these 
states to issue PSD permits to such sources. Therefore, EPA issued a 
finding that Kansas and the other 12 states' SIPs are substantially 
inadequate to comply with CAA requirements. Accordingly, and as part of 
the same action, EPA also issued a SIP Call to require a SIP revision 
that applies their SIP PSD programs to GHG-emitting sources. EPA also 
established a SIP submittal deadline. In the proposed SIP call, EPA had 
stated that the deadline could range from as little as three weeks 
after the final SIP call was signed to as long as 12 months after the 
final SIP call was signed, and that each affected state was authorized 
to indicate to EPA a deadline to which it did not object. In the final 
SIP call, EPA established deadlines that ranged, for the various 
states, from December 23, 2010 (three weeks after signature), to 
December 1, 2011 (12 months after signature), based, in general, on 
each state's preference. Kansas was one of the states for which EPA 
proposed and finalized the SIP Call. The state's comments regarding the 
proposed SIP call, submitted October 4, 2010, are included in the 
docket for this rulemaking. In the SIP call, EPA established a SIP 
submittal deadline for Kansas of December 22, 2010, in accordance with 
Kansas's preferences in that letter.
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    \5\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final Rule.'' 75 FR 77698 (December 13, 2010).
    \6\ See footnotes 9 and 10.
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    In addition, in the SIP call rulemaking, EPA stated certain 
requirements that the corrective SIP revision must meet, which are that 
the corrective SIP revision must--

    (i) Apply the SIP PSD program to GHG-emitting sources;
    (ii) Define GHGs as the same pollutant to which the Light-Duty 
Vehicle Rule \7\ (LDVR) applies, that is, a single pollutant that is 
the aggregate of the group of six gases (carbon dioxide 
(CO2), methane (CH4), nitrous oxide 
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons 
(PFCs), and sulfur hexafluoride (SF6)); and
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    \7\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    (iii) Either limit PSD applicability to GHG-emitting sources by 
adopting the applicability thresholds included in the Tailoring Rule 
or adopt lower thresholds and show that the state has adequate 
personnel and funding to administer and implement those lower 
thresholds.
    In addition, if the corrective SIP revision adopts the Tailoring 
Rule thresholds, then it must either adopt the CO2e 
metric and use short tons (as opposed to metric tons) for 
calculating GHG emissions in order to implement those thresholds, or 
assure that its approach is at least as stringent as under the 
Tailoring Rule, so that the state does not exclude more sources than 
under the Tailoring Rule.

75 FR 77713/1 to 77715/1.

    In the companion ``proposed GHG PSD FIP'' rulemaking,\8\ EPA 
proposed a FIP that would give EPA authority to apply EPA's PSD program 
to GHG-emitting sources in any state unable to submit a corrective SIP 
revision by its deadline. After Kansas did not meet its SIP submission 
deadline of December 22, 2010, EPA issued a finding of Kansas's failure 
to submit a SIP revision \9\ and finalized the FIP for Kansas and six 
other states: Arizona, Arkansas, Florida, Idaho, Oregon, and 
Wyoming.\10\ In this notice, EPA stated its intent to leave the GHG PSD 
FIP in place only as long as necessary for a state to submit and EPA to 
approve a SIP revision that includes PSD permitting for GHG-emitting 
sources.
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    \8\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan: Proposed 
Rule.'' 75 FR 53883 (September 2, 2010).
    \9\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure to Submit State 
Implementation Plan Revisions Required for Greenhouse Gases.'' 75 FR 
81874 (December 29, 2010).
    \10\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan; Final Rule.'' 
75 FR 82246 (December 30, 2010).
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    On October 4, 2010, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, and in anticipation of the GHG PSD SIP Call 
rulemaking, KDHE submitted a draft revision of its air quality 
regulations to EPA for approval into the Kansas SIP to: (1) Provide the 
State of Kansas with the authority to regulate GHGs under its PSD 
program; and (2) establish appropriate emission thresholds and time-
frames for determining which new or modified stationary sources become 
subject to Kansas's PSD permitting requirements for GHG emissions. 
Subsequently, on November 18, 2010, EPA published a proposed rulemaking 
to approve KDHE's October 4, 2010, SIP revision under parallel 
processing. 75 FR 70657. There, EPA stated that it ``will not take 
final action on the GHG SIP Call for the state of Kansas if the state 
submits its

[[Page 9660]]

final SIP revision to EPA prior to the final rulemaking for the GHG SIP 
Call,'' indicating that the proposed SIP revision would be sufficient 
to address the inadequacies that serve as the basis for the SIP Call, 
and later the final GHG PSD FIP. 75 FR at 70663.
    EPA's November 18, 2010, proposed approval was contingent upon the 
State of Kansas providing a final SIP revision that was substantially 
the same as the draft revision proposed for approval. Id. After EPA 
issued a finding that Kansas did not submit a SIP revision by its 
December 22, 2010, deadline, and established a FIP for Kansas in 
actions signed on December 23, 2010, Kansas submitted its final SIP 
revision on December 23, 2010. This SIP revision is the same as the 
proposed revision KDHE submitted on October 4, 2010, for parallel 
processing. EPA is approving the final SIP revision in today's action 
and is simultaneously withdrawing the FIP as it relates to the State of 
Kansas.

II. Analysis of Kansas's SIP Revision

    Section 110(k)(3) of the CAA provides that EPA shall approve a SIP 
revision as a whole if it meets all of the applicable requirements of 
the CAA. Kansas received a SIP call because its PSD program does not 
apply to GHGs, and as a result, Kansas is required to submit a SIP 
revision that applies PSD to GHGs and does so either at the Tailoring 
Rule thresholds or at lower thresholds, and, if the latter, then Kansas 
is required to demonstrate that it has adequate resources for 
implementation.
    Kansas has submitted a SIP revision that provides this authority. 
Kansas's SIP revision updates the incorporation by reference to EPA's 
definition in 40 CFR 52.21(b)(49) for ``subject to regulation'' to 
explicitly include GHG as a regulated NSR pollutant under the CAA. In 
addition, the Kansas rules incorporate the same thresholds and phase-in 
schedule as the Tailoring Rule and they adopt the carbon dioxide 
equivalent (CO2e) metric and use of short tons for 
determining the thresholds.
    EPA has determined that this change to Kansas's regulation meets 
the requirements of the SIP call. Thus, this change is consistent with 
the CAA and its implementing regulations regarding GHG. The changes 
included in this submittal are the same as EPA's Tailoring Rule, and 
therefore comply with the requirements of the SIP call.

III. What is EPA's response to comments received on the proposed 
action?

    EPA received a single set of comments on the November 18, 2010, 
proposed rulemaking to approve revisions to Kansas's SIP. These 
comments, provided by the Air Permitting Forum (hereinafter referred to 
as ``the Commenter''), raised concerns with regard to EPA's November 
18, 2010, proposed action. A full set of these comments is provided in 
the docket for today's final action. A summary of the comments and 
EPA's responses are provided below.
    Generally, the adverse comments fall into five categories. First, 
the Commenter asserts that PSD requirements cannot be triggered by 
GHGs. Second, the Commenter characterizes EPA's interpretation of the 
CAA by saying that Kansas will face a construction ban absent this SIP 
revision and asserts that this interpretation is incorrect. 
Furthermore, in a footnote, the Commenter expresses that EPA's process 
of revising the state's SIP is inconsistent with CAA section 110 
because it does not provide for notice and comment on the final state 
action. Third, the Commenter expresses concerns regarding EPA's 
previously announced intention to narrow its prior approval of some 
SIPs to ensure that sources with GHG emissions that are less than the 
Tailoring Rule's thresholds will not be obligated under federal law to 
obtain PSD permits prior to a SIP revision incorporating those 
thresholds. The Commenter explains that the planned SIP approval 
narrowing action is ``inapplicable to this action and, if applicable, 
is illegal.'' Fourth, the Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. Lastly, 
the Commenter states: ``If EPA proceeds with this action, it should 
make clear that any incorporation by reference conducted by Kansas 
would rest on the continued existence and validity of the federal 
regulations on which it [sic] the incorporation is based.'' EPA's 
response to these five categories of comments is provided below.
    Comment 1: The Commenter asserts that PSD requirements cannot be 
triggered by GHGs. In its letter, the Commenter states: ``[N]o area in 
the State of Kansas has been designated attainment or unclassifiable 
for greenhouse gases (GHGs), as there is no national ambient air 
quality standard (NAAQS) for GHGs. Therefore, GHGs cannot trigger PSD 
permitting.'' The Commenter notes that it made this argument in detail 
in comments submitted to EPA on the Tailoring Rule and other related 
GHG rulemakings. The Commenter attached those previously submitted 
comments to its comments on the proposed rulemaking related to this 
action. Finally, the Commenter states that ``EPA should immediately 
provide notice that it is now interpreting the Act not to require that 
GHGs trigger PSD and allow Kansas to rescind that portion of its rules 
that would allow GHGs to trigger PSD.''
    Response 1: EPA established the requirement that PSD applies to all 
pollutants newly subject to regulation, including non-NAAQS pollutants, 
in earlier national rulemakings concerning the PSD program, and EPA has 
not re-opened that issue in this rulemaking. Accordingly, these 
comments are not relevant to this rulemaking. In addition, EPA has 
explained in detail, in recent rulemakings concerning GHG PSD 
requirements, its reasons for disagreeing with these comments.
    In an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712, 
and 45 FR 52735, EPA stated that a ``major stationary source'' was one 
that emitted ``any air pollutant subject to regulation under the Act'' 
at or above the specified numerical thresholds; and defined a ``major 
modification,'' in general, as a physical or operational change that 
increased emissions of ``any pollutant subject to regulation under the 
Act'' by more than an amount that EPA variously termed as de minimis or 
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and 
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the 
new definition of ``regulated NSR pollutant'' (currently codified at 40 
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this 
term based on a request from a commenter to ``clarify which pollutants 
are covered under the PSD program''; and explained that in addition to 
criteria pollutants for which a NAAQS has been established, ``[t]he PSD 
program applies automatically to newly regulated NSR pollutants, which 
would include final promulgation of an NSPS [new source performance 
standard] applicable to a previously unregulated pollutant.'' Id. at 67 
FR 80240 and 67 FR 80264. Among other things, the definition of 
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise 
is subject to regulation under the Act.'' See 40 CFR 
52.21(b)(50)(d)(iv); see also 40 CFR 51.166(a)(49)(iv).
    In any event, EPA disagrees with the Commenter's underlying premise 
that PSD requirements are not triggered for GHGs when GHGs become 
subject to regulation as of January 2, 2011. As just noted, this has 
been well-established and discussed in connection with prior EPA 
actions, including, most recently, the Johnson Memo Reconsideration and 
the Tailoring Rule. In addition, EPA's November 18, 2010, proposed

[[Page 9661]]

rulemaking notice provides the general basis for the Agency's rationale 
that GHGs, while not a NAAQS pollutant, can trigger PSD permitting 
requirements. The November 18, 2010, notice also refers the reader to 
the preamble to the Tailoring Rule for further information on this 
rationale. In that rulemaking, EPA addressed at length the comment that 
PSD can be triggered only by pollutants subject to the NAAQS and 
concluded that such an interpretation of the Act would contravene 
Congress's unambiguous intent. See 75 FR 31560-31562. Further 
discussion of EPA's rationale for concluding that PSD requirements are 
triggered by non-NAAQS pollutants such as GHGs appears in the Tailoring 
Rule Response to Comments document (``Prevention of Significant 
Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public 
Comments''), pp. 34-41; and in EPA's response to motions for a stay 
filed in the litigation concerning those rules (``EPA's Response to 
Motions for Stay,'' Coalition for Responsible Regulation v. EPA, D.C. 
Cir. No. 09-1322 (and consolidated cases)), at pp. 47-59, and are 
incorporated by reference here. These documents have been placed in the 
docket for today's action.
    Comment 2: In its letter, the Commenter mentions that it provided 
comments on EPA's GHG PSD SIP Call and GHG PSD FIP rulemakings 
expressing that ``EPA's interpretation of the Act to impose a 
construction ban based on Section 165(a) is incorrect.'' Further, the 
Commenter states: ``No statutory language addressing implementation 
plan requirements can be construed to produce self-executing changes to 
SIPs or FIPs approved or promulgated under section 110 of the Act 
unless Congress enacts statutory provisions explicitly amending those 
SIPs or FIPs to incorporate the new requirements, thereby obviating the 
need for rulemaking under section 110(a) or (c) of the Act to effect 
revisions to those implementation plans.'' The Commenter also contends 
that there is no support for EPA's ``permit moratorium'' interpretation 
because the Commenter believes CAA section 165(a) is not self-
executing, and approved SIPs and promulgated FIPs can only be changed 
through section 110 rulemakings to revise those plans. In support of 
its position, the Commenter cites to United States v. Cinergy Corp., 
No. 09-3344 (7th Cir. October 12, 2010). The Commenter further states 
that Kansas would be able to issue PSD permits after January 2, 2011, 
even without GHG limits, because its current SIP is approved and it 
would be acting consistently with that approved SIP. Further, the 
Commenter states that ``EPA's rule contemplated that states have 3 
years to revise their SIPs when an NSR-related change occurs and, 
assuming without conceding that EPA could impose PSD on GHGs, EPA 
should have followed that procedure in this case.'' Finally, the 
Commenter states that EPA's notice-and-comment process associated with 
the proposed SIP revision is inconsistent with section 110 because it 
does not provide for federal notice and comment on the final state 
action.
    Response 2: EPA established the requirement that Kansas submit a 
corrective SIP revision in the SIP call rulemaking. As a result, the 
only issues relevant to this rulemaking concern whether Kansas's SIP 
submission meets the requirements of the SIP call and therefore should 
be approved. Issues concerning the validity of the SIP call, including 
the comments raised by the commenter, may have been relevant for the 
SIP call rulemaking but are not relevant for this rulemaking. 
Accordingly, these comments are not relevant for this rulemaking. EPA 
notes that the Agency provided an extensive response in the final GHG 
PSD SIP Call rulemaking to comments nearly identical to comments 
received on this rulemaking, 75 FR 77698. EPA incorporates by reference 
those responses, as contained in the GHG PSD SIP Call preamble and the 
Tailoring Rule Response to Comment document, into this rulemaking. The 
following gives examples of references in the GHG PSD SIP Call 
rulemaking preamble and record in which EPA responded to these, or 
substantially similar, comments:
    With respect to the comments that (i) ``EPA's interpretation of the 
Act to impose a construction ban based on Section 165(a) is 
incorrect''; (ii) ``No statutory language addressing implementation 
plan requirements can be construed to produce self-executing changes to 
SIPs or FIPs approved or promulgated under section 110 of the Act 
unless Congress enacts statutory provisions explicitly amending those 
SIPs or FIPs to incorporate new requirements, thereby obviating the 
need for rulemaking under section 110(a) or (c) of the Act to effect 
revisions to those implementation plans''; and (iii) there is no 
support for EPA's ``permit moratorium'' interpretation because (in the 
Commenter's opinion) CAA section 165(a) is not self-executing and 
approved SIPs and promulgated FIPs can only be changed through section 
110 rulemakings to revise those plans, see, for example, 75 FR 77705 
(footnote 16), and 75 FR 77710-77711. EPA notes further that the 
requirement of CAA section 165(a)(1) that stationary sources that emit 
the requisite quantity of pollutants subject to regulation obtain a 
pre-construction permit is mandated by the CAA and is automatically 
updated to apply to any pollutant newly subject to regulation; thus, 
contrary to the Commenter's statement, EPA is not construing the CAA to 
``produce self-executing changes to SIPs * * *.'' In addition, today's 
action does not create what the Commenter calls a ``permit 
moratorium''; in fact, today's rule continues a permitting authority 
for GHG-emitting sources for Kansas that had already been established 
as of the GHG PSD permitting requirements effective date.\11\ Further, 
no ``self-executing changes'' to Kansas's SIP are made in today's 
action; EPA is simply approving Kansas's SIP revision, submitted 
December 23, 2010, according to the proper process.
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    \11\ For the period of January 2, 2011, to the effective date of 
this final action, EPA and KDHE have entered into a delegation 
agreement which delegated federal authority (established by the GHG 
PSD FIP for Kansas, as described above) to issue and modify PSD 
permits for sources of GHGs in Kansas to KDHE.
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    With respect to the comment that a decision by Judge Posner in 
United States v. Cinergy Corp., No. 09-3344 (7th Cir. October 12, 
2010), directly addresses this issue, see 75 FR 77705-77706, footnote 
16.
    With respect to the comment that Kansas would be able to issue PSD 
permits after January 2, 2011, even without GHG limits, because its 
current SIP is approved and it would be acting consistent with that 
approved SIP, EPA notes that it is true that as of January 2, 2011, 
Kansas could issue such a permit to cover the non-GHG pollutants 
emitted by a source that is major for a pollutant other than GHGs. If 
the source emits GHGs in at least the amount specified in the Tailoring 
Rule, however, then the source would also need a PSD permit for its GHG 
emissions. Kansas already has authority to issue GHG permits by virtue 
of the FIP delegation described in footnote 10.
    With respect to the comment that ``EPA's rule contemplated that 
states have 3 years to revise their SIPs when an NSR-related change 
occurs and, assuming without conceding that EPA could impose PSD on 
GHGs, EPA should have followed that procedure in this case,'' see 75 FR 
77707-77708. In any event, the proper length of time EPA must provide 
states to act is also irrelevant to this rule because this action deals 
with a SIP revision actually

[[Page 9662]]

submitted by Kansas to EPA for approval. In addition, EPA has also 
addressed the issue of whether a construction ban applies in states 
with approved PSD SIPs that do not cover GHGs in its Response in 
Opposition to Petitioner's Emergency Motion for a Stay Pending Review, 
Texas v. EPA, No. 10-1425 (DC Cir. filed January 6, 2011), and in its 
Response in Opposition to Motion of National Association of 
Manufacturers et al. to File a Response as Amicus Curiae in Support of 
Petitioners' Stay Motion (also filed in the Texas case, on January 7, 
2011).
    EPA disagrees with the Commenter's statement that EPA's proposed 
action on Kansas's draft rules is inconsistent with CAA section 110 
because it does not provide for federal notice and comment on the final 
state action. EPA's proposed approval was based on the draft form of 
the State of Kansas's regulations on which the state itself solicited 
public comment. As explained in our proposal at 75 FR 70657, EPA 
utilized a ``parallel processing'' procedure for this SIP revision. 
Under this procedure, EPA proposes rulemaking action concurrently with 
the state's procedures for approving a SIP submittal and amending its 
regulations (40 CFR part 51, appendix V, 2.3). EPA reviews the proposed 
SIP submittal in the same manner in which it reviews a final, adopted 
regulation, even though the regulation is not yet adopted in final form 
by the state. In doing so, EPA evaluates the draft regulation against 
the same approvability criteria as any other SIP submittal. If 
substantial changes are made between the draft SIP revision upon which 
EPA solicits comment and the final SIP revision submitted by the state, 
EPA reissues the final SIP revision for a new round of public comment. 
Thus, using the ``parallel processing'' procedure does not avoid any 
statutory requirements, and has not done so here. The proposal 
published November 18, 2010, gave the public the appropriate 
opportunity to comment on the substance of the October 4, 2010, SIP 
revision for which EPA is today issuing a final approval. In fact, the 
revision adopted by Kansas is identical to the draft regulation which 
EPA described in the proposal. Therefore, the Commenter and others had 
the opportunity to comment on the exact regulatory language which was 
finally adopted by Kansas and is approved in today's action.
    Comment 3: The Commenter expresses concerns regarding the legality 
of narrowing prior SIP approvals if states cannot interpret their 
regulations to include the Tailoring Rule thresholds within the phrase 
``subject to regulation.''
    Response 3: While EPA does not agree with the Commenter's assertion 
that the narrowing approach discussed in EPA's Tailoring Rule is 
illegal, the validity of the narrowing approach is irrelevant to the 
action that EPA is today taking for Kansas's December 23, 2010, SIP 
revision. EPA did not propose to narrow its approval of Kansas's SIP as 
part of this action, and in today's final action, EPA is acting to 
approve a SIP revision submitted by Kansas and is not otherwise 
narrowing its approval of prior submitted and approved provisions in 
the Kansas SIP. Accordingly, the legality of the narrowing approach is 
not at issue in this rulemaking.
    Comment 4: The Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. 
Specifically, the Commenter refers to the statutory requirements and 
executive orders for the Paperwork Reduction Act, the Regulatory 
Flexibility Act (RFA), the Unfunded Mandates Reform Act, and Executive 
Order 13132 (Federalism). Additionally, the Commenter mentions that EPA 
has never analyzed the costs and benefits associated with triggering 
PSD for stationary sources in Kansas, much less nationwide.
    Response 4: EPA disagrees with the Commenter's statement that EPA 
has failed to meet applicable statutory and executive order review 
requirements. As stated in EPA's proposed approval of Kansas's October 
4, 2010, proposed SIP revision, this action merely approves state law 
as meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. Accordingly, EPA 
approval, in and of itself, does not impose any new information 
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would 
require additional review under the Paperwork Reduction Act. In 
addition, this SIP approval will not have a significant economic impact 
on a substantial number of small entities, beyond that which would be 
required by the state law requirements, so a regulatory flexibility 
analysis is not required under the RFA. Accordingly, this rule is 
appropriately certified under section 605(b) of the RFA. Moreover, as 
this action approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandates or significantly 
or uniquely affect small governments, such that it would be subject to 
the Unfunded Mandates Reform Act. Finally, this action does not have 
federalism implications that would make Executive Order 13132 
applicable, because it merely approves a state rule implementing a 
federal standard and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA.
    Today's rule is a routine approval of a SIP revision, approving 
state law, and does not impose any requirements beyond those imposed by 
state law. To the extent these comments are directed more generally to 
the application of the statutory and executive order reviews to the 
required regulation of GHGs under PSD programs, these comments are 
irrelevant to the approval of state law in today's action. However, EPA 
provided an extensive response to similar comments in promulgating the 
Tailoring Rule. EPA refers the Commenter to the sections in the 
Tailoring Rule entitled ``VII. Comments on Statutory and Executive 
Order Reviews,'' 75 FR 31601-31603, and ``VI. What are the economic 
impacts of the final rule?,'' 75 FR 31595-31601. EPA also notes that 
today's action does not in-and-of itself trigger the regulation of 
GHGs. To the contrary, GHGs are already being regulated nationally, PSD 
permitting for GHG emissions by Kansas is already specifically 
authorized under delegation of the existing FIP, and today's action 
simply approves existing state laws that accomplish the same thing as 
the FIP.
    Comment 5: The Commenter states that ``[i]f EPA proceeds with this 
action, it should make clear that any incorporation by reference 
conducted by Kansas would rest on the continued existence and validity 
of the federal regulations on which the incorporation is based.'' 
Further, the Commenter remarks on the ongoing litigation in the U.S. 
Court of Appeals for the DC Circuit. Specifically, regarding EPA's 
determination that PSD can be triggered by GHGs or is applicable to 
GHGs, the Commenter mentions that ``any vacatur of those regulations 
should also be effective to vacate the SIP provision itself since the 
SIP would be referencing a regulation that no longer is valid or 
exists.''
    Response 5: EPA believes that it is most appropriate to take 
actions that are consistent with the federal regulations that are in 
place at the time the action is being taken. To the extent that any 
changes to federal regulations related to today's action result from 
pending legal challenges or other actions, EPA will process appropriate 
SIP revisions in accordance with the procedures provided in the Act and 
EPA's regulations. EPA notes that in an order dated December 10, 2010, 
the United

[[Page 9663]]

States Court of Appeals for the DC Circuit denied motions to stay EPA's 
regulatory actions related to GHGs. Coalition for Responsible 
Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092 (and 
consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010) (order 
denying stay motions).

IV. What is the effect of this final action?

    Final approval of Kansas's December 23, 2010, SIP revision will 
make Kansas's SIP adequate with respect to PSD requirements for GHG-
emitting sources, thereby negating the need for the GHG PSD FIP for 
Kansas and the delegation agreement between EPA and KDHE. The FIP is 
also being withdrawn today. Additionally, final approval of Kansas's 
SIP revision will incorporate into the SIP the GHG emission thresholds 
for PSD applicability that were set forth in EPA's Tailoring Rule and 
included in the GHG PSD FIP for Kansas, ensuring that smaller GHG 
sources emitting below these thresholds will continue to not be subject 
to permitting requirements. Pursuant to section 110 of the CAA, EPA is 
approving the changes made in Kansas's December 23, 2010, proposed SIP 
revision into the state's SIP. However, as we noted in the proposed 
approval of the Kansas submittal, 75 FR 70663, this action only 
addresses the December 23, 2010, revisions relating to the regulation 
of GHGs under the state's PSD program. We intend to act on the state's 
revisions to its Title V program separately, as well as Kansas's 
separate submittal of changes to the applicability of the PSD program 
to contain ethanol production facilities (the ``Ethanol Rule''). 
Furthermore, as Kansas has not adopted EPA's ``Fugitive Emissions 
Rule,'' today's action does not address the Fugitive Emissions Rule.
    The changes to Kansas's SIP-approved PSD program that EPA is 
approving today have been reviewed and determined to be consistent with 
the Tailoring Rule. Furthermore, EPA has determined that the December 
23, 2010, revision to Kansas's SIP is consistent with section 110 of 
the CAA. See, e.g., Tailoring Rule, at 75 FR 31561. As a result of 
EPA's approval today, the deficiency in Kansas's SIP is corrected and 
EPA no longer has the authority for the FIP for Kansas, and so EPA is 
also withdrawing the FIP for Kansas. 75 FR 82246 (December 30, 2010).

V. When is this action effective?

    The effective date of today's final action is the date that this 
notice is published in the Federal Register. In accordance with 5 
U.S.C. 553(d), EPA finds there is good cause for this action to become 
effective on the date of publication. The effective date upon 
publication of this notice for this action is authorized under 5 U.S.C. 
553(d)(3), which allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' The purpose of the 30-day waiting period 
prescribed in section 553(d) is to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. Today's rule, however, does not create any substantively new 
regulatory requirements such that affected parties would need time to 
prepare before the rule takes effect. Rather, today's rule withdraws 
the FIP, replaces the current regulatory requirements under the FIP 
with the same requirements under the SIP, shifts current permitting 
authority for GHGs to Kansas under its SIP instead of EPA under the 
FIP, and negates the need for the delegation agreement that delegated 
authority from EPA to KDHE to issue and modify PSD permits for sources 
of GHGs in Kansas. With this rule KDHE becomes the permitting authority 
for all pollutants (including GHGs) under the SIP-approved program. For 
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this 
action to become effective immediately upon publication.

VI. Final Action

    EPA is taking final action to approve the state of Kansas's 
December 23, 2010, SIP revision, which incorporates changes into the 
Kansas Administrative Regulations (28-19-200a and 28-19-350). The SIP 
revision Kansas submitted on December 23, 2010, (1) provides the state 
with the authority to regulate GHGs under its PSD program, and (2) 
establishes appropriate emissions thresholds for determining PSD 
applicability with respect to new or modified GHG-emitting stationary 
sources in accordance with EPA's Tailoring Rule. EPA has made the 
determination that the December 23, 2010, SIP revision is approvable 
because it is in accordance with the CAA and EPA regulations, including 
regulations pertaining to PSD permitting for GHGs.
    Today's action also withdraws the FIP that was previously imposed 
in Kansas, and which this SIP revision displaces. Accordingly, EPA is 
rescinding the entirety of 40 CFR 52.37(b)(5) (applying the FIP to 
Kansas). EPA is taking this FIP withdrawal action as a final rule 
without providing an additional opportunity for public comment because 
EPA finds that the Administrative Procedure Act (APA) good cause 
exemption applies here. Section 553 of the APA, 5 U.S.C. 553(b)(B), 
provides that when an Agency for good cause finds that notice and 
public procedure are impracticable, unnecessary, or contrary to public 
interest, the Agency may issue a rule without providing notice and an 
opportunity to comment.
    EPA has determined that it is unnecessary or contrary to the public 
interest to provide an additional opportunity for public comment on 
this action because the withdrawal of the FIP for Kansas is a necessary 
and simply ministerial act. Once EPA fully approves the SIP for Kansas 
as meeting the requirements of the GHG SIP call, and that approval is 
effective, EPA no longer has the authority for the GHG PSD FIP in 
Kansas. Because the SIP approval removes EPA's authority for the FIP, 
EPA believes it has no option but to withdraw the FIP. Therefore, EPA 
is taking this withdrawal action to remove the regulatory text that 
applies the GHG PSD FIP requirements to sources in Kansas, and that 
action is ministerial. If EPA were to decide to reconsider or reverse 
the SIP approval action, it would take any appropriate action with 
regard to the FIP at that time. For these reasons, it would serve no 
useful purpose to provide an additional opportunity for public comment 
on this issue.
    EPA also finds that it would be contrary to the public interest to 
delay issuing this rule in order to offer additional comment 
opportunities. Delaying the withdrawal of the FIP would leave the FIP 
in place even though the SIP would now also be in place, which would 
result in duplicative permitting authority and, as a result of that, 
confusion to the public. Promulgation of this rule serves to clarify 
that sources initially covered by the FIP in Kansas are now covered 
only by the requirements of the Kansas SIP.
    Further, EPA previously provided public notice that the withdrawal 
of a GHG PSD FIP for any state to which the FIP applied would be done 
at the same time as the approval of a GHG SIP for that state. See 75 FR 
at 82251. The public had opportunity to provide comment on this 
procedure during the rulemaking process for the GHG PSD FIP rule 
referenced above (footnotes 7 and 9). The rulemaking process for Kansas 
provided the public with ample opportunity to comment on the 
substantive issues related to the SIP approval. To provide an 
additional opportunity to comment on the FIP withdrawal action for 
Kansas, which cannot alter or affect the terms of the

[[Page 9664]]

SIP approval, would serve no useful purpose and is thus unnecessary.
    For these reasons, EPA hereby finds for good cause, pursuant to 
section 553 of the APA, that it would be unnecessary and contrary to 
the public interest for EPA to offer an additional opportunity for 
public comment and a public hearing on this rule. Therefore, pursuant 
to section 307(d)(1) the requirements of 307(d), including the 
requirement for a public hearing, do not apply to this action.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. In addition, withdrawal of the GHG PSD FIP as a result of this 
approval of state law merely clarifies that the federal plan no longer 
applies. For those reasons, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
action and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 25, 2011 Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review, nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, and Reporting 
and recordkeeping requirements.

    Dated: February 15, 2011.
Lisa P. Jackson,
Administrator.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42.U.S.C. 7401 et seq.

Subpart A--General Provisions


Sec.  52.37  [Amended]

0
2. Section 52.37 is amended by removing and reserving paragraph (b)(5).

Subpart R--Kansas

0
3. In Sec.  52.870 (c) the table is amended by revising the entry for 
``K.A.R. 28-19-350'' to read as follows:
    Sec.  52.870 Identification of plan.
* * * * *
    (c) * * *

                                         EPA-Approved Kansas Regulations
----------------------------------------------------------------------------------------------------------------
                                                      State
     Kansas citation               Title         effective date    EPA approval date          Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                       Construction Permits and Approvals
----------------------------------------------------------------------------------------------------------------
28-19-350................  Prevention of             01/02/2011  2/22/11 [Insert       Approval does not include
                            Significant                           citation of           Kansas's revisions to
                            Deterioration (PSD)                   publication].         the Ethanol Rule (72 FR
                            of Air Quality.                                             24060, May 1, 2007) and
                                                                                        to the Fugitive
                                                                                        Emissions Rule (73 FR
                                                                                        77882, December 19,
                                                                                        2008).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 9665]]

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[FR Doc. 2011-3858 Filed 2-18-11; 8:45 am]
BILLING CODE 6560-50-P